Citation Nr: 0014973
Decision Date: 06/07/00 Archive Date: 06/15/00
DOCKET NO. 98-03 042A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for a
hearing disability.
REPRESENTATION
Appellant represented by: Colorado Department of Human
Services
ATTORNEY FOR THE BOARD
Marisa Kim, Associate Counsel
INTRODUCTION
The veteran served on active duty for training from April
1955 to April 1958 and from April 1959 to May 1959.
This appeal is before the Board of Veterans' Appeals (Board)
from the September 1997 rating decision from the Cleveland,
Ohio, Department of Veterans Affairs (VA) Regional Office
(RO) that denied reopening the claim of entitlement to
service connection for hearing loss. The January 1999 rating
decision from the Denver, Colorado VARO denied service
connection for ear infections and tinnitus.
The September 1999 statement raised an informal claim for
nonservice connected pension. This matter is referred to the
RO.
FINDINGS OF FACT
1. The RO denied service connection for bilateral hearing
loss in September 1993 and notified the veteran of that
decision by letter dated September 15, 1993; he did not
appeal.
2. Evidence received since the September 1993 rating
decision includes medical evidence that shows that the
veteran currently has a hearing disability.
3. The probative medical evidence does not show diagnosis or
treatment of a hearing disability during the veteran's active
duty for training.
4. The probative medical evidence does not include a nexus
opinion relating a current diagnosis of a hearing disability
to the veteran's active duty for training.
CONCLUSIONS OF LAW
1. The September 1993 rating decision became final because
the RO notified the veteran of that decision by letter dated
September 15, 1993, and he did not appeal. 38 C.F.R.
§§ 20.200, 20.201, 20.302(a) (1999).
2. The evidence received since the September 1993 rating
decision is new and material evidence; the claim is reopened.
38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R.
§§ 3.104(a), 3.156(a) (1999).
3. The claim of entitlement to service connection for a
hearing disability is not well grounded. 38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.385 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The state of the evidence prior to September 1993
The June 1954 military examination report stated that the
veteran's eardrums were abnormal, and the veteran reported a
history of chronic otitis media. The veteran did not enter
active service.
In April 1955, the veteran underwent examination for
enlistment into the United States Marine Corp Reserves.
Hearing was 15/15 in the right ear and 15/15 in the left ear.
The veteran reported a history of perforation of both tympana
in 1952 and of running ear and chronic otitis media in 1954.
The right tympanum was healed. The left tympanum was
unhealed but there was no evidence of active disease.
In April 1992 and May 1993, the National Personnel Records
Center in St. Louis, Missouri, sent written confirmation to
the RO that the veteran had no active duty other than for
training purposes.
The July 1993 audiological examination revealed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
55
45
30
55
70
LEFT
35
30
25
40
80
Speech audiometry revealed speech recognition ability of 100
percent in the right ear and of 100 percent in the left ear.
The left ear showed mild sensorineural hearing loss of the
lower frequencies gradually dropping off to a moderate mixed
loss of the higher frequencies. The right ear showed a
moderate mixed loss.
The August 1993 statement alleged that the veteran was
exposed to gunfire noise in the military. He alleged that he
was treated in 1956 at Quantico, Virginia, and that he had a
separation physical in San Diego, California, in 1959.
The state of the evidence since September 1993
The veteran underwent a VA audiologic evaluation in January
1997. The veteran reported hearing problems and tinnitus
after being exposed to weapons noise in the military and a
history of ear infections in the military and for 10 years
after discharge. He did not recall an ear infection in the
past 20 years. He obtained custom hearing aids last year.
The veteran placed cloth tape over the casing and exposed
internal components of his right hearing aid after his dog
damaged it 1-2 months ago.
Audiological examination revealed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
55
45
30
45
55
LEFT
35
30
40
65
85
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 92 percent in the left ear.
The right ear showed a moderate mixed hearing loss. The left
ear showed mild sloping to severe mixed hearing loss.
The veteran's June 1997 statement alleged that ear
infections, draining ears, perforated eardrums, and exposure
to small arms and mortar fire in the military led to the
veteran's current hearing loss.
The March 1998 appeal alleged that the veteran served on
active duty from 1955 to 1959 and that he experienced
multiple ear infections in service that aggravated a pre-
existing eardrum injury.
The veteran underwent a VA audiologic assessment in April
1998. The veteran reported hearing problems and tinnitus
after being exposed to weapons noise and a history of
treatment for ear infections in the military. He reported
having a perforation in one of his eardrums treated and
closed in service. The veteran had a custom hearing aid for
the right ear which he obtained privately several years ago,
and he reported that his dog destroyed the left hearing aid
about 9 months ago. The right ear showed moderate to
moderately severe mixed hearing loss with 25-30 decibels
conductive component through the speech frequencies and
greater than 40 decibels conductive component in the high
frequencies. The left ear showed mild sloping to severe
mixed primarily sensorineural, hearing loss. Speech
discrimination was 96 percent in the right ear and 92 percent
in the left ear. The examiner opined that today's results
were comparable to those obtained in January 1997.
The representative's November 1998 statement alleged that the
veteran incurred a hearing disability in service because
there was no chronic residual of pre-existing otitis media
shown at entry into service. The veteran believed that a
pre-existing hearing disability was aggravated by exposure to
acoustic trauma and infections during military service.
The veteran's February 1999 statement alleged that he had
lost his records and had sent the RO all the records that he
had. He alleged that he served on active duty because he
performed special classified assignments for the Pentagon and
the U.S. Marine Corps.
The August 1999 treatment note stated that the veteran had
continuing difficulty with hearing on a daily basis. The
veteran reported significant noise exposure through the
military. The veteran denied ear pain or drainage. He
reported intermittent tinnitus but did not note vertigo or
disequilibrium. Audiological examination revealed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
50
40
25
50
80
LEFT
25
30
45
65
80
Speech audiometry revealed speech recognition ability of 84
percent in the right ear and of 80 percent in the left ear.
The diagnosis was severe right, moderately severe left
hearing loss, combined sensorineural conductive in the right
ear.
Criteria
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) defined a
three-step process for reopening claims. The Board must
first determine whether new and material evidence has been
presented under 38 C.F.R. § 3.156(a), i.e., the new evidence
bears directly and substantially on the specific matter, and
is so significant that it must be considered to fairly decide
the merits of the claim; second, if new and material evidence
has been presented, immediately upon reopening the Board must
determine whether, based upon all the evidence and presuming
its credibility, the claim as reopened is well grounded
pursuant to 38 U.S.C. § 5107(a); and third, if the claim is
well grounded, the Board may evaluate the merits after
ensuring the duty to assist under 38 U.S.C. § 5107(b) has
been fulfilled. See Elkins v. West, 2 Vet. App. 422 (1999)
(en banc); Winters v. West, 12 Vet. App. 203 (1999) (en
banc); Justus v. Principi, 3 Vet. App. 510 (1992). When
determining whether the claim should be reopened, the
credibility of evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The Court of Appeals for Veterans Claims (Court) has held
that a well-grounded claim requires competent evidence of
current disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence). See
Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza
v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604
(Fed. Cir. 1996). Such a claim need not be conclusive but
only possible to satisfy the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
Service connection may be established where the evidence
demonstrates that an injury or disease resulting in
disability was contracted in the line of duty coincident with
military service, or if pre-existing such service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303 (1999).
The regulations provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet. App. 352, 356
(1992). In Godfrey, the Court provided the following
guidance: "If evidence should sufficiently demonstrate a
medical relationship between the veteran's in-service
exposure to loud noise and his current disability, it would
follow that the veteran incurred an injury in service; the
requirements of section 1110 would be satisfied."
Audiometric testing measures threshold hearing levels in
decibels (dB) over a range of frequencies in Hertz (Hz); the
threshold for normal hearing is from zero to 20 dB, a higher
threshold indicates some degree of hearing loss. Hensley v.
Brown, 5 Vet. App. 155 (1993). Under the provisions of 38
C.F.R. § 3.385 (1999), impaired hearing will be considered to
be a disability when the auditory threshold in any of the
frequencies of 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of frequencies of 500, 1,000, 2,000, 3,000 or
4,000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385 (1999).
The regulations provide that satisfactory lay or other
evidence that an injury or disease was incurred or aggravated
in combat will be accepted will be accepted as sufficient
proof of service connection if the evidence is consistent
with circumstances, conditions or hardships of such service
even though there is no official record of such incurrence or
aggravation. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §
3.304(d)(1999); Kessel v. West, 13 Vet. App. 9, 17 (1999).
Active military, naval, and air service includes any period
of active duty for training during which the individual
concerned was disabled from a disease or injury incurred or
aggravated in line of duty. See 38 C.F.R. § 3.6(a) (1999).
Active duty for training is full-time duty in the Armed
Forces performed by Reserves for training purposes.
38 C.F.R. § 3.6(c) (1999).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Analysis
As a preliminary matter, the Board will adjudicate the claim
based on the current evidence of record because the veteran
failed to report for his scheduled Travel Board hearing in
May 2000. The veteran received notice of the May 2000 Travel
Board hearing because the notice was mailed to the veteran
and was not returned as undeliverable. The United States
Court of Appeals for Veterans Claims has held that the law
requires only that the VA mail a notice; it then presumes the
regularity of the administrative process "in the absence of
clear evidence to the contrary." Mindenhall v. Brown, 7 Vet.
App. 271 (1994). Neither the veteran nor his representative
requested another hearing or filed a motion for a new
hearing. Therefore, the Board will adjudicate the claim
based on the current evidence of record because notices were
sent to the veteran's "latest address of record," and the
veteran did not show good cause for failing to appear. See
38 C.F.R. § 3.655(b), 20.704(d) (1999).
The veteran has presented new evidence that was not in the
record at the time of the September 1993 rating decision: 1)
medical records since September 1993; and 2) lay statements
since September 1993. The new evidence is not cumulative
because the record previously contained no post-September
1993 medical records or lay statements. The new evidence is
material because its helps to explain the nature and duration
of the veteran's current hearing disability. The claim must
be reopened because the new and material evidence, which
confirms the presence of a hearing disability, in connection
with evidence previously assembled, is so significant that it
must be considered in order to fairly decide the merits of
the claim.
The claim of entitlement to service connection for a hearing
disability is not well grounded. The medical evidence
included a current diagnosis of a hearing disability because
the July 1993, January 1997, and August 1999 audiological
examinations revealed bilateral hearing loss in 2-4 of the 5
frequencies tested and in speech recognition tests of the
left ear in January 1997 and of both ears in August 1999.
See 38 C.F.R. § 3.385.
The claim is not well grounded because the medical evidence
did not show diagnosis or treatment of a hearing disability
in service. Although the veteran reported a history of pre-
existing tympana perforations and running ear and chronic
otitis media, the right tympanum was healed and the left
tympanum showed no evidence of active disease when the
veteran entered the Reserves in April 1955. The medical
evidence did not otherwise show diagnosis or treatment for a
hearing or ear problem in service. Although the veteran
alleged that he was treated at a military clinic in Quantico,
Virginia and had a separation physical in San Diego,
California, service medical records did not include those
records. In addition, the provisions of 38 U.S.C.A.
§ 1154(b) were inapplicable because the evidence did not show
combat duty. Instead, the veteran served his entire active
duty for training during peacetime.
In any event, the claim is not well grounded because the
medical evidence did not include a nexus opinion relating a
current hearing disability to active duty for training.
Instead, the first evidence of a post-service hearing
disability appeared in July 1993, over 30 years after the
veteran was discharged from the Reserves. Although the
August 1999 examiner noted that the veteran reported
significant noise exposure in the military, a bare
transcription of a lay history is not transformed into
"competent medical evidence" merely because the transcriber
happens to be a medical professional. LeShore v. Brown, 8
Vet. App. 406 (1995). In this case, speech recognition
ability was 100 percent in both ears in July 1993, and the
veteran did not obtain custom hearing aids until 1996, over
35 years after he was discharged from the Reserves.
The veteran and his representative asserted that noise
exposure and infections in service caused the veteran's
hearing disability many years later. Nonetheless, the
veteran and his representative are lay persons who are not
competent to diagnose the cause of his current hearing
disability. While a lay person is competent to provide
evidence on the occurrence of observable symptoms during and
following service, such a lay person is not competent to make
a medical diagnosis or render a medical opinion which relates
a medical disorder to a specific cause. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992). Accordingly, the
claim of entitlement to service connection for a hearing
disability is not well grounded.
The VA cannot assist in any further development of this claim
because it is not well grounded. 38 U.S.C.A. § 5107(a);
Morton v. West, 13 Vet. App. 205 (1999).
ORDER
New and material evidence having been submitted, the claim
for service connection for a hearing disability is reopened.
Entitlement to service connection for a hearing disability is
denied.
V. L. Jordan
Member, Board of Veterans' Appeals